Convention Abolishing The Requirement Of Legalisation For Foreign Public Documents

The Convention Abolishing the Requirement of Legalisation For Foreign Public Documents made at the Hague on October 5, 1961, was approved by the Colombian Congress by means of Law 455 of August 4, 1998. This Law 455 was declared constitutional by the Constitutional Court through judgment C-164/99 ⁽¹⁾.

The Colombian Government deposited the instrument of ratification on April 27, 2000 and enacted the Convention for Colombian internal purposes by means of Decree 106 of January 18 of 2001 issued by the Colombian Ministry of Foreign Affairs.

The Convention became enforceable for Colombia on January 30, 2001.

According to the terms set forth in the Convention, the legalisation of public documents that have been executed in the territory of a State party to the Convention (a "Contracting State") and which are to be used or enforced in the territory of another Contracting State is not required.

For the purposes of the Convention, legalisation means only the formal act whereby the diplomatic or consular agents of the country in which the relevant document is to be used or enforced certifies the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, "the identity of the seal or stamp which it bears" ⁽²⁾.

The Convention creates a sole mandatory measure of control: this is the stamping of a seal called "Apostille", by the competent authority of the State where the document was produced. The Apostille is a pre-printed form included as an Annex to the Convention.

The Convention simplifies the old "chain" authentication procedure which required multiple seals to be stamped on documents, by eliminating many steps in the chain. Documents which have the special Hague Legalisation Certificate must be acceptable in other countries party to the Convention without requiring any further formality.

For the purposes of the Convention, the following are deemed to be public documents:

1. documents emanating from an authority or an official connected with the courts or tribunals of the State, including those emanating from a public prosecutor, a clerk of a court or a process-server ("huissier de justice");
2. administrative documents;
3. notarial acts;
4. official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures.

However, the Convention shall not apply:

1. to documents executed by diplomatic or consular agents;
2. to administrative documents dealing directly with commercial or customs operations.

For Colombian purposes, these last documents must still follow the procedure that is established in articles 259 and 260 of the Civil Procedure Code, article 480 of the Code of Commerce and Resolution 2201 of July 22 of 1997 issued by the Colombian Ministry of Foreign Affairs.

By way of conclusion, as from January 30, 2001 public documents, as defined in the Convention, issued in Contracting States do not require the authentication before the Colombian Consulate nor subsequent legalisation before the legalisation office of the Colombian Ministry of Foreign Affairs, and are effective in Colombia provided they contain the Apostille certificate.

Documents (i) issued in countries that are not a party to the Convention, or (ii) that are excluded by the Convention's definition of public documents will still require Consular authentication and subsequent legalisation before the Colombian Ministry of Foreign Affairs.

⁽¹⁾ The declaration by the Constitutional Court to the effect that a law whereby Congress ratifies an international instrument does not contravene the Colombian Constitution is one of the formal requirements established by Colombian Law for the entry into force (for Colombian internal purposes) of the relevant instrument.

⁽²⁾Article two (2) of the Convention Abolishing the Requirement of Legalisation For Foreign Public Documents made at the Hague on October 5, 1961.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.